May 26, 2012

Puerta Governs, Not Dependent on Whether Party is Represented Or Not, and Does Impact Substantial Rights of Party Claiming Offer Was Invalid.

The defendant in Perez v. Torres, Case No. F061214 (5th Dist. May 24, 2012) (certified for publication) must have been kicking himself. He made a “successful” CCP § 998 offer that would have shifted almost $45,000 in costs to the plaintiff who did not beat the offer. However, there was a rub. (Yep, when you say there was a rub, you know there was a problem.)

The defense forgot to include an acceptance provision in the 998 offer, which invalidated it under Puerta v. Torres, 195 Cal.App.4th 1267 (2011). The trial court taxed the defense request for costs, which led to an appeal.

Defendant’s proffered distinctions of Puerta did not cut it on appeal.

First, although Puerta involved an unrepresented party, the appellate court found that the status of the litigant made no difference in this area -- to hold the omission was harmless when a 998 offeree is represented by counsel would allow an exception to swallow the brightline rule that the absence of the acceptance provision means the offer does not cut the mustard.

The defense then argued “harmless error”--there was no indication that plaintiff would have ever accepted the offer. (Code Civ. Proc., § 475.) Not so fast, said the appellate panel, because such an argument is speculative at best and did impact the offeree who would have incurred $45,000 in costs that she was otherwise not obligated to pay. Hardly chump change and impacting substantial rights when it came to paying money.